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A workplace investigation: When should an Employer retain an external investigator?

A workplace investigation: When should an Employer retain an external investigator?

Any Employer could receive a complaint about questionable conduct in the workplace. When Employers receive such a complaint or information otherwise comes to light, some investigation will have to happen so that the Employer will know what, if any, action it has to take. A preliminary issue for an Employer is whether it can investigate the complaint or if it should retain an external investigator. This newsletter identifies some considerations for an Employer in determining when it should retain an external investigator.

Any Employer could receive a complaint regarding behaviour in the workplace. Alternatively, an Employer might observe suspicious activity or have concerns about an employee violating company policy. This information could relate to any number of issues, including harassment, discrimination, employee theft, substance abuse, or fraud. If such information is brought to an Employer’s attention, the Employer has to respond quickly. That response might include a workplace investigation.

Not every complaint or concern requires a formal investigation. After assessing the situation, the issue might be resolved informally through discussions with a specific employee, workplace training, or other non-disciplinary action. It may simply reflect a misunderstanding, with no wrongful behaviour at all. However, if the complaint or concern is serious, particularly if it involves harassment, discrimination, violence in the workplace, theft or fraud, an investigation is likely required.

Often, an Employer can conduct the investigation itself. Many people who work in management and human resources roles have the skills to conduct an investigation. However, there are definitely times when the Employer should consider retaining an external investigator. The decision in Disotell v Kraft Canada Inc. (2010 ONSC 3793, 2010 CarswellOnt 5781) is an excellent example of a situation where an external investigation would almost certainly have been better than the internal investigation that occurred.

Although the Employer in that case, Kraft Canada (“Kraft”), would be a large employer overall, this particular work site was small. Kraft had disciplined Mr. Disotell in 2003 for sharing very inappropriate information about his former shift leader. Mr. Disotell later claimed that after that discipline, management had a “closing of ranks” around him. In 2006 he went off work and filed a complaint of harassment. The Human Resources Department (“H.R.”) at the site conducted an investigation. The investigation was very limited. The investigators interviewed four supervisory employees there, but did not interview the four co-workers who were the alleged perpetrators or any of the employees who worked on the same shift as Mr. Disotell. Further, the investigators did not probe some direct contradictions in the information they did get. Mr. Disotell eventually started a legal action against Kraft.

The Ontario Superior Court of Justice was very critical of the investigation. It concluded that “Kraft was not conducting a serious investigation” (at para 120). The Court had earlier referred to the connections between the employees in that small workplace as a problem. It wrote in the decision:

The H.R. investigation, in my opinion, demonstrates the inherent difficulty of in-house investigations between employees of longstanding relationships, especially when there are conflicting reports between supervisory and first level employees. Kraft has clearly invested much time and effort in creating and disseminating a zero tolerance harassment policy. That policy however is only as effective as the individuals who administer it.

Kraft issued harassment investigation Guidelines. Paragraph 4 states:

Remain neutral until all facts are in and be considerate of the feelings of both parties.

Faced with the serious and repetitive allegations made by the Plaintiff against four named employees and given the knowledge of one substantiated complaint that two of the named individuals had committed conduct sufficiently serious that a supervisor verbally reprimanded them, the conduct or conclusions of H.R. were not “neutral”. All the facts were “not in”, as none of the four alleged perpetrators or other floor employees were interviewed as is clearly contemplated in the Guideline’s reference to “both parties”, namely the harasser and the harassee.

Based on those comments and similar comments in other cases, we typically recommend that an Employer retain an external investigator for any of the following reasons:

To ensure that the investigators have appropriate experience in conducting investigations. It is crucial that an investigation be done properly. A proper investigation will best ensure fairness to all of the people involved. Further, it will better ensure that the Employer can rely on the results of the investigation in taking action.

To avoid bias. Obviously, if a complaint is made against a particular person, that person should not have any part in the investigation. Bias can occur in other situations too. If the complaint is made against a manager or high-level person within the organization, employees who report to that manager should not play a role in the investigation.

Also, as the case of Disotell set out above shows, there are often allegiances and connections in a small workplace that could make it difficult to conduct an internal investigation that would be considered unbiased.

To ensure a timely investigation. An investigation should be done as soon as possible after a complaint is filed or information otherwise comes to light.

Further, an investigation could require a dedicated block of time. Managers and human resources staff already have their own jobs to do and simply might not have the time to conduct an investigation, too.

If the subject matter is complex. Some workplace issues can be very complex. If information came to light, for instance, that a Director of Finance had been “cooking the books” (to speak informally), it would probably be necessary to have an accounting firm conduct the investigation as the matter might be too complex for anyone else. Some complaints of harassment and discrimination have become very complex.

To comply with a policy and/or collective agreement. While rare, it could be the case that a policy or collective agreement identifies situations where a matter should be sent to an external investigator. An Employer should be sure to check policies and any applicable collective agreement and take any steps required there.

There may be other reasons to retain an external investigator as well, but these are the ones that we encounter the most often. The crucial point is that, where necessary, Employers respond to a complaint or concern by conducting an appropriate investigation, whether it be done by internal staff or an external investigator.